Pointing to what it says is an “unacceptable” level of workplace injuries and illnesses among workers in nursing homes and other residential care facilities, OSHA has announced that it will soon begin a national emphasis program to increase enforcement in that industry.

The incidence rate for healthcare support workers increased 6 percent in 2010 to a level nearly two and a half times that for all private and public sector workers, according to figures from the federal Bureau of Labor Statistics. The number of ergonomics injuries with days away from work increased 10 percent for nursing aides, orderlies and attendants.

OSHA chief David Michaels said the national emphasis program would “increase our inspections of these facilities, focusing on back injuries from resident handling or lifting patients; exposure to bloodborne pathogens and other infectious diseases; workplace violence; and slips, trips and falls.”

The program will cover nursing homes and residential care facilities, such as assisted living complexes.

Operators of these businesses, who may be unaccustomed to intense OSHA scrutiny, may wish to read our article “How to meet the challenge of greatly increased OSHA enforcement,” which provides useful tips.

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The federal Bureau of Labor Statistics recently announced that non-fatal injuries and illnesses in private industry declined by 200,000 from 2009 to 2010.

OSHA hailed that as good news, and rightly so. But to gain a fuller understanding of the numbers, you need to look at statistics going back a number of years.

These statistics show that the number of illnesses and injuries in private industry have been on a steady decline for years, as shown in this chart created by the government which tracks injury and illness numbers from 1994 to 2010.

That, of course is great news, as well. But it also demonstrates that maybe OSHA’s enforcement crackdown over the last two-plus years hasn’t changed the trend.

What’s ahead for OSHA

In announcing the numbers, Labor Secretary Hilda Solis gave some indications about where the agency will be focusing in the future: recordkeeping, the healthcare industry and public sector employers.

“We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing,” she said.

“Illness and injury rates for public sector workers also continue to be alarmingly high at 5.7 cases for every 100 workers, which is more than 60 percent higher than the private sector rate,” Solis said.

“A report like this also highlights the importance of accurate record keeping.” she said. “Employers must know what injuries and illnesses are occurring in their workplaces in order to identify and correct systemic issues that put their workers at risk. We are concerned with poor record-keeping practices and programs that discourage workers from reporting injuries and illnesses.”

Too much focus on recordkeeping

My concern with this focus is that it prompts employers to expend their limited safety resources on recordkeeping requirements rather than continuing to identify and correct hazards and behaviors in the workplace. A tremendous amount of industry resources are devoted, for example, to trying to determine whether an injury should be classified as first aid, medical treatment or restricted duty. At the same time, OSHA has recently determined that falls from heights is the most violated standard.

I can’t believe that OSHA is expending their limited resources in recordkeeping yet OSHA still has general industry fall protection regulations that are totally inadequate. Somehow OSHA’s priorities have been misplaced.

Recently, I had the pleasure of being the keynote speaker for a statewide organization focused on improving quality in healthcare. Some of you are probably asking, “What the heck does that have to do with safety?” Good question and the answers lie in the bridge called “lean” thinking.

All of the attendees were immersed in using “lean” to improve operational performance in their organizations. Many healthcare organizations are beset with challenges to reduce errors, cut costs and provide faster services. Do those sound familiar to the management challenges laid out in your own organization?

“Lean” is the term used to describe Toyota’s production system in the 1991 book, “The Machine that Changed the World.” Lean thinking and tools focus on the identification and elimination of waste, allowing any business process or system to be faster, better and cheaper. Over the years, many companies and industries like healthcare have learned that “lean” works in offices and any kind/size of business.

History buffs may know that Toyota created tools and problem solving processes to follow the teaching of W. Edwards Deming. Deming, often credited with being one of the key figures for the modern quality movement, did not preach lean. His 14 Points or principles simply laid out the foundation for leadership that allowed every member of the organization to be involved with organizational transformation.

Leadership with engaged employees – sounds a lot like what we in safety are always striving for.

You cannot be lean without being safe

My message was “You cannot be lean without being safe.” It is a given that healthcare professionals are focused on patient safety. Healthcare organizations that are several years into their “lean journey” for organizational transformation have impressive case studies demonstrating improvement in operational excellence. Yet, only a few of these organizations have included employee safety in their processes to improve work.

How can this be? Needle sticks, blood borne pathogens and a myriad of ergonomic issues are just some of the hazards that confront nurses and other healthcare workers. For the lean folks, is it someone else’s responsibility to handle employee safety?

Is this the same thinking that safety folks use when we say, “Lean or production is someone else’s responsibility.” Do our paradigms about roles and responsibilities constrain taking advantage of opportunities that would make things run faster, better, cheaper – - and safer?

Whether your company uses “lean” or some other form of continuous improvement, we in safety have a golden opportunity to help our leaders understand that injury and illness is waste. If we value our employees, then we need to make safety 24-7. When we do this, we have made the first step onto the path where lean and safety are carried out as an integrated process.

Is it right for OSHA to penalize an employer for an incident that was completely beyond the company’s ability to prevent?

If that seems wrong to you, I agree. But that is exactly where OSHA is heading with a new directive issued to its inspectors.

It instructs those inspectors how to hold employers responsible under the General Duty clause for instances of workplace violence not even committed by one of the company’s employees.

In an excellent article about the directive in the Washington Examiner, Michael Billock, a labor and employment lawyer at Bond, Schoeneck & King PLLC in Albany, N.Y., creates a hypothetical situation that demonstrates where this could lead:

“Picture this scenario: One day, in a large hospital with thousands of patient visits per year, the unthinkable occurs — while a doctor explains unfortunate news to a patient’s family, a relative pulls a gun and mortally wounds the doctor.

“That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration investigator arrives to conduct an inspection.

“After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.”

Billock goes on to point out that General Duty clause was not intended to be used this way and that the directive provides employers no clue about what to do to avoid a citation.

This is yet another instance of overreaching by the “New” OSHA. Even though the agency appeared to be pulling back earlier this year to some degree on issues like noise, ergonomics and a proposed Injury and Illness Prevention Program, it is now clear that the agency intends to keep its overly aggressive approach in place. Proposals on noise and I2P2 are back and now OSHA is going even further with this misguided approach to workplace violence.

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Two controversial proposals by OSHA are becoming entangled with partisan fighting over the federal budget.

A spending bill crafted recently by Rep. Denny Rehberg (R-Mont.), chairman of the House Labor, Health and Human Services Subcommittee, would block OSHA from moving ahead on proposals to change the way ergonomic injuries are reported and to create an Injury and Illness Prevention Program.

As reported by The Hill, a Washington publication, Rehberg’s bill drew immediate criticism from the Obama administration and the AFL-CIO.

The ergonomics bill would create a separate column for musculoskeletal injuries on the injury log that employers must submit to OSHA. Business groups have said that this is the first step towards reviving efforts to create an OSHA standard on ergonomics, an effort which failed 10 years ago.

The Injury and Illness Prevention Program – I2P2 for short – would require employers to develop safety programs that conform with specific federal guidelines. Business groups have objected that such a program would be a bureaucratic nightmare, creating guidelines that would not fit well with a wide variety of industries and business conditions.

At a hearing last week, Rep. Tim Walberg (R-Mich.), chairman of the House subcommittee on workforce protections, said that the costs of regulations can be significant and can cause employers to refrain from hiring new workers.

OSHA administrator David Michaels defended the safety regulations, saying, “OSHA regulations don’t kill jobs. They stop jobs from killing workers.”

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Based on recent calls, OSHA appears to be turning a spotlight on companies that use energy control circuitry during tasks that are routine, repetitive and integral to their operations.

As most readers know, OSHA requires lockout/tagout to control potentially hazardous energy or unexpected startup during service and maintenance work. OSHA has also said that “Setting up is not considered utilization of a machine or equipment and is classified as servicing and/or maintenance, rather than normal production operations.”

For purposes of this blog, we’ll only discuss lockout. Lockout procedures must assure the primary energy source is disabled and locked. The use of control circuitry is not allowed for tasks where lockout is required. However, minor tool changes and adjustments, and other minor servicing operations, which take place during normal production operations, are not covered by the standard if they are routine, repetitive, and integral to the use of machines or equipment for production, and if work is performed using alternative protective measures which provide effective employee protection. Lockout/tagout is not required when each of these elements exists and employees may perform servicing and maintenance activities with the machine or equipment energized.

But how do you know whether your tasks meet these criteria?

A process to follow

The good news is that there is a process a company can follow to answer the question. In a 1999 letter to the UAW and General Motors, OSHA said that the company and union had used a Task Based Risk Assessment methodology through which a Monitored Power System (MPS) was incorporated into specific equipment. (A Monitored Power System is circuitry using control reliable safeguarding.)

In the letter OSHA stated:

“…an MPS, which meets the above referenced ANSI (B11) consensus standards on control reliability and control component failure protection, would provide alternative safeguarding measures, which constitute effective employee protection. Thus, such an MPS may be used to protect employees who are performing minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations, provided that each element of the §1910.147(a)(2)(ii) exception is met. In other words, the MPS system may be used in cases in which minor tool changes and adjustments, and other minor servicing activities, are performed during normal production operations, and are routine, repetitive, and integral to the use of the equipment for production…”

FDRsafety Senior Advisor Mike Taubitz is a a long-time member of the B11 Accredited Standards Committee. He also assists companies in conducting a task based risk assessment to determine if lockout/tagout or alternative safeguarding is needed for effective employee protection.

OSHA has reduced the minimum size for companies to be included under the Site-Specific Targeting program, so that now companies in selected industries with as few as 20 employees can be inspected.

The Site-Specific program is OSHA chief programmed inspection plan for high-hazard, non-construction workplaces. Earlier versions of the program applied only to companies with at least 40 employees. The agency selects establishments randomly for inspection from a primary list of 3,700 manufacturing, non-manufacturing, and nursing and personal care facilities.

Here are the criteria for being included on the list for potential inspection:

Manufacturing establishments

Manufacturing establishments with a DART rate at or above 7.0, or a DAFWII case rate at or above 5.0 (only one of these criteria must be met). This is approximately 3,000 sites.

The DART rate is based on “Days Away, Restrictions and Transfers” for workers per 200,000 hours.

The DAFWII rate is the number of cases of “Days Away from Work Injury and Illness” per 100 full-time equivalent employees.

Non-manufacturing establishments

Non-manufacturing establishments (except for nursing and personal care facilities) with a DART rate at or above 15.0, or a DAFWII case rate at or above 14.0 (only one of these criteria must be met). This is approximately 400 sites.

Nursing and personal care facilities

Nursing and personal care facilities with a DART rate at or above 16.0, or a DAFWII case rate at or above 13.0 (only one of these criteria must be met). This is approximately 300 sites.

Even as the motor carrier industry and its customers get accustomed to the government’s new safety measurement system -—Compliance, Safety, Accountability (CSA) — the Federal Motor Carrier Safety Administration is making certain improvements to the program.

The most important revisions appear likely to come in the seven BASICS — the individual measures that calculate carriers’ on-the-road history and crash involvement.

Right now, five of the seven BASICS can be seen by the public while the Cargo Securement and Crash BASICS are withheld from public view (although available to the individual motor carrier using their DOT-issued PIN). DOT has indicated that it will likely make minor tweaks to the five public BASICS, significant changes to the Cargo Securement BASIC, and a process for improved validation of the Crash BASIC.

Changes to the Cargo BASIC

First, the Cargo BASIC was found to disproportionately affect certain operating segments, particularly flatbed carriers. In addition the severity weights that the government attached to violations that reflect the violation’s correlation with crash risk were assigned high values in this BASIC.

In the next few months, you are likely to see a major recalibration of the Cargo Securement BASIC which will reflect a more valid and fair measure of safety risk. In the meantime, carriers should not assume that the severity weights will be seriously diluted and should act now to remedy the conditions that have resulted in a high score in this area. Among other measures, load securement refresher training and better monitoring and checking of freight before it leaves the terminal by someone other than the driver/employee who originally secured the load can help contribute to better outcomes in this BASIC.

Alterations to the Crash BASIC

There is perhaps no BASIC more important to the entire truck/bus/shipper/enforcement
community than the Crash BASIC. This is because the government’s premise is that “past crashes are the best predictor of future crashes” and the entire CSA program was developed to establish competent ways to identify and intervene with carriers that pose the greatest risk to the travelling public before they are involved in a crash. Find the highest risk operators, intervene aggressively with them, prod them into compliance or get them out of the transportation business.

Historically, though, there were problems caused by the limitations of the data source that populates the Crash BASIC and which records crash involvement, i.e., police accident reports. This is mainly due to the nature of crashes — usually local police respond, fill out the report, and do not always state on the report which driver(s) “caused” the crash.

So when the states report the crash, the report usually notes that a commercial vehicle was involved in the accident but the form does not always identify the accountable party. This often results in a carrier being coded in the government’s databases as having a recordable accident that may or may not have been the carrier’s fault. For decades, DOT has tried to find a resolution of this problem but, since it requires thousands of police units, the states, etc., all being willing to agree to a reasonable and simple process, including how to pay for it, the solution has been elusive.

It seems, though, that progress is being made to establish a way for carriers and drivers to ask DOT for a review of specific accident reports that would be conducted by a trained crash analyst. The government is working on a new procedure that will allow for a review and decision regarding fixing “fault” for individual accidents where the cause is unclear and allow for the carrier to have some degree of due process in establishing whether a particular crash could have been prevented by the truck/bus driver.

This opportunity to challenge crash reports, especially after the carrier/driver has exhausted its efforts at the state/local level, is something the industry has been persistently pressing the federal government to establish. It is unclear when this new procedure will be “open for business” but until it is up and running and includes time for the government to evaluate its workability, the Crash BASIC will likely remain private to the motor carrier.

Companies should analyze their crashes

Again, as earlier urged, companies should be analyzing their crashes and striving to reduce the risks of having any crashes at all by focusing on the full safety management strategies of the company. If you believe your drivers are not at fault and seem to “always be in the wrong place at the wrong time” when they get into accidents, you may want to reconsider that point of view. Evidence points to the fact that most accidents are, in fact, preventable.

If, for example, your drivers have many intersection crashes, explore if the driver is perhaps speeding through the yellow light and not clearing the trailer from the intersection before oncoming traffic enters; for rear end collisions, ensure all lamps and lights are properly working so that trailing traffic is warned the driver is braking. In the end, it is very unlikely that the other driver is always the culprit.

As always, carriers should continually monitor their CSA scores, take corrective action, and strive to earn BASIC scores that signal that safety is a core value and that customers can be confident that the carrier runs a safe operation.

Rose A. McMurray, former Chief Safety Officer at the Federal Motor Carrier Safety Administration, is Chief Transportation Advisor at FDRsafety and consults with carriers on improving their CSA scores and other motor carrier and road safety issues. She may be contacted at rmcmurray@fdrsafety.com or 1-888-755-8010.

With all the attention to complying with OSHA regulations, it’s easy for employers to lose sight of a very significant statistic – six times as many work days are lost due to off-the-job injuries as on-the-job injuries.

What’s more, less than 4 percent of accidental deaths occur at the workplace. And while workplace deaths and deaths from vehicle accidents are on the decline, accidental deaths in the home or in public places are on the rise.

The statistics on days lost make a compelling case as to why employers should address this issue. Consider the financial consequences when a valued employee is off the job for three days, three weeks or three months because he or she didn’t buckle their seatbelt or fell off a ladder that was improperly placed.

For suggestions on how employers can begin to take action, read my article in the August 2011 issue of MFRTech, which is reprinted on this website.

Receiving an OSHA citation can be a bit unnerving, but every employer should remember that receiving the citation is in some ways just the beginning, not the end, of the process.

Scott Jacoby, health and safety director for a major metals recycling business, has been on the receiving end of OSHA citations over the years. I asked him to write a guest post on how to handle the OSHA Informal Conference, which any employer may request within 15 working days of receiving a citation. The purpose of the conference is to discuss the alleged violations and negotiate a resolution if possible. Here’s what Scott has to say:

The OSHA Informal Conference is not a place to “wing it.” Over time, I have developed a basic method I call “The Script” to prepare and participate.

In my opinion, the fines are basically meaningless in most cases. The real long term risk to the business is the level of citation/violation. My general goal is to achieve a downgrade of each violation to the lowest possible level. Before the conference I have already decided what violation classifications are acceptable and what I consider to be a deal breaker. In general, this is based upon the future risk to the company of being cited for repeat and willful violations. Remember, OSHA wants to make a deal – they don’t want employers to contest violations!

Elements of “The Script”:

1. Introductions. Formally introduce each person from the company who is attending the conference. I have always found three attendees to be a good number. Most likely a representative from senior leadership, one from safety and a technical expert is enough. You need to give these folks very specific direction on what to say, when to say it and how to say it.

2. Senior leadership statement. The senior leader must express with conviction his/her belief in and commitment to providing a safe and healthful work environment.

3. Safety and health program. Review your efforts in relation to your program requirements, focusing on the positive aspects of the program. You must demonstrate your company’s commitment to making an investment in safety.

4. Enterprise-wide response. Make sure that OSHA understands that the corrective action and abatement for the items identified goes beyond the specific area that was cited and that all similar situations throughout the facility will also be corrected. Provide a quick rundown on hazard identification, risk assessment and corrective action.

5. Know more than they do. You need to be an expert on each alleged violation: manufacturer information, source standards, operator instructions, technical guidelines, OSHA compliance directives and letters of interpretation – everything!

6. Likely to cause death or serious physical harm. That is the basis of a serious violation. Make sure that OSHA has objective evidence regarding this issue on each alleged serious violation. Remember, failure to complete an inspection, audit, inventory or some other basic administrative compliance requirement, such as maintaining records, should never be the basis for a serious violation.

7. They probably made mistakes. Did they cite the wrong standard? Did they follow their own industrial hygiene sampling protocol? Did they follow the Field Operations Manual? Did they actually witness the alleged hazardous condition? Failure to follow OSHA procedures gives you very strong arguments for downgrading or deleting a violation.

8. Lawyers. Don’t bring them to the informal! But in some manner you should relate that you have already sought legal guidance on the alleged violations and are prepared to contest. However, OSHA should also be aware that you would rather come to a negotiated agreement. Have a completed and signed “Notice of Contest” letter prepared and sitting on the table during your discussions.

9. Start with the easy issues. You should be able to get some basic agreement on downgrading or deleting alleged violations that were obviously cited incorrectly. This gives you a chance to get in the flow with OSHA and move closer to the finish line. Remember, OSHA wants to settle.

10. Be done with it. Ensure you have completely abated all the violation items so that you can walk out the door and the only thing you need to do is send a check.

11. Dress appropriately. Might not seem like a big thing, but an appropriate appearance is in your favor.

Scott Jacoby can be contacted at (781) 690-8739.